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Openly gay NJ Supreme Court nominee would recuse himself from marriage equality decision

Marriage equality

By Jacob Combs

Yesterday, while New Jersey Gov. Chris Christie used some colorful words with reporters in response to criticisms of his call to put marriage equality up for a referendum, he also shared some interesting news about Bruce Harris, the openly gay man he has nominated to the state’s Supreme Court.  From Bloomberg:

The governor, 49, said today that Harris told him that he has advocated for gay marriage personally and as a politician.

“If confirmed to the court, he would recuse himself from that matter because he did not want there to be the appearance of bias on his part on that issue,” Christie told reporters. “My perspective on that issue was to put it aside because he’s not going to rule on that.”

Timothy Kincaid, at Box Turtle Bulletin, argues that Harris’s decision is the right one, since he is not pledging to recuse himself based solely on his orientation, but rather for his previous political action in support of marriage equality.  Harris wrote an email in 2009 to a group of Republican legislators who opposed marriage equality, using his own experience to persuade them to change their minds.  Here’s the full email, courtesy of Kincaid:

As a Republican elected official and someone who has worked hard (and successfully) to get Republicans elected in Chatham Borough, it disturbs me that same-sex marriage has become a Republican versus Democrat issue (understanding there are some Democrats who do not support same-sex marriage). I was encouraged to see former Governor Christine Whitman’s op-ed piece in the Sunday, November 29, 2009 Star-Ledger supporting same-sex marriage, I hope you read her article and will seriously consider her suggestion.

You have met me and my partner of nearly 30 years, Marc, on more than one occasion at various political gatherings. The New Jersey Supreme court has determined that our relationship is entitled to the equal protection guarantees of the State Constitution. The New jersey Civil Union Review Commission determined that civil unions do not provide the equality the State Constitution mandates.(Please take a few moments and visit www.gardenstateequality.org. which has two short videos that provide sad examples of the failures of the civil union law.)

When I hear someone say that they believe marriage is only between a man and a woman because that’s the way it’s always been, I think of the many “traditions” that deprived people of their civil rights for centuries: prohibitions on interracial marriage, slavery, (which is even provided for in the Bible), segregation, the subservience of women, to name just a few of these “traditions.”

I hope that you consider my request that you re-evaluate your position and, if after viewing the videos, reading Governor Whitman’s letter and thinking again about this issue of civil rights you still oppose same-sex marriage on grounds other than religion I would appreciate it if you you’d explain your position to me. And, if the basis of your opposition is religious, then I suggest that you do what the US Constitution mandates – and that is to maintain a separation between the state and religion.

23 Comments

  • 1. Ann S.  |  January 31, 2012 at 1:04 pm

    It does sound as though there is a proper reason for recusal here. Bit of a shame, though.

  • 2. Dana Jeanne  |  January 31, 2012 at 1:05 pm

    **** I suggest that you do what the US Constitution mandates – and that is to maintain a separation between the state and religion. ****

    That seems to have disappeared in the last few elections, especially with the people trying for the Republican Nomination. Granted, the candidates who claimed "God was calling me" to run have all dropped out, but the ones left are still touting religion and family values and so on. That is, when they're not villifying thier fellow Presidential-wanna-be's.

  • 3. Sheryl_Carver  |  January 31, 2012 at 1:15 pm

    Unfortunately, we are more likely to see a female president, an LGBT president, a non-Christian-but-religiously-affiliated president, and pretty much any other category of president before we EVER see an atheist president. So much for the separation of church & state in the minds of the current majority of US voters.

  • 4. AnonyGrl  |  January 31, 2012 at 1:18 pm

    I don't see it as such a shame… I like the fact that he made the point that it was because he was an active advocate, which, clearly, is not the case in California. If anything, making that distinction is a valuable point.

    Of course, the anti-gay crowd will scream "SEE??? All homosexuals should be recused!!!!" and miss the point entirely. I am loathe to even venture into the NOMblog to see that inevitable rant.

  • 5. Russell  |  January 31, 2012 at 1:19 pm

    I was ready to scream and rant that he shouldn't do that. Doing, however, what some supporters of Prop 8 never do, I read past the headlines and actually read the article.
    I think his rationale is both just and honorable and the best thing for the "cause."
    This decision saves everyone from listening to naysayers down the line repeat the same mantra of a judge being biased because of his or her personal lifestyle.
    Hopefully this man will serve fairly on the bench for many years to come

  • 6. Sagesse  |  January 31, 2012 at 1:20 pm

    @

  • 7. Lymis  |  January 31, 2012 at 1:29 pm

    Well, it seems to me whether the question is one of advocating or political lobbying in favor of one side of what the judge sees as a controversial but debatable issue, or whether the judge sees it as a court case impacting a fundamental right of citizens.

    Should a judge who advocated for equal rights for women, or against discriminatory voter registration laws, or for the protection of religious liberty have to recuse himself or herself from any case that touches on those issues?

    In a very real sense, many supreme court justices are appointed in part because of their history of supporting Constitutional rights and the rule of law. Are they supposed to recuse themselves for any case that involves something they advocated?

    Is there, in fact, ANYTHING that Justice Scalia hasn't expressed a heated opinion on?

    And frankly, "He should excuse himself because uninformed bigots will use this against the process" is one of the worst arguments for recusal I have ever heard. What happened to the courage of one's convictions?

  • 8. Lymis  |  January 31, 2012 at 1:37 pm

    Let me also add a purely practical point – if it's a good idea for him to recuse himself because otherwise, the opposition will use his orientation as a reason he should have done so, why in the world would we expect those same people – who have made very lucrative careers out of manipulating the facts and often outright lying – not to spin his recusal?

    I guarantee you that if he does recuse himself, they will say, no matter what the judge says, that he did it because he is gay, and that it sets a precedent, and that therefore he and every other gay judge must recuse themselves in every gay rights case in the future, or since every gay person is hostile to Christianity in their minds, to recuse himself from every case involving a Christian.

    If you think they'd use his hearing the case against him, just wait until they use his recusal against him in every other case he ever hears.

  • 9. frisky1  |  January 31, 2012 at 1:40 pm

    This article offers a little bit of history regarding Christie and the NJ Supreme Court. When I remember things like this, it becomes hard for me to imagine that Christie didn't "strongly influence" this justice's decision to recuse himself on marriage equality. This quote was regarding Christie's firing of a justice–the first time that happened apparently in something like 60 years:

    “Before and since becoming governor, I was unambiguous in my intention to bring balance and change to the Supreme Court. My selection today is not a commentary on Justice Wallace. It is a fulfillment of my promise to turn the court away from its history of using legal precedent to set social and tax policies in our state – a role which belongs squarely with the legislative and executive branches of state government,” Christie said in a news release.
    http://www.lehighvalleylive.com/breaking-news/ind

  • 10. MJFargo  |  January 31, 2012 at 1:41 pm

    Amen! :)

  • 11. MJFargo  |  January 31, 2012 at 1:50 pm

    I think you're at the heart of the matter, Lymis. While expressing one's opinion "everywhere" is distinct from working to actively lobby or politically promote a cause, I find it disappointing that someone so distinguished would surrender something this valuable. I do know people who are gay and against same sex marriage–but not as a fundamental right. However, none of those people would qualify as being "politically active" against same sex marriage. If they were in the same position, would they have to recuse themselves or would we want them to?

  • 12. joy2u2  |  January 31, 2012 at 2:14 pm

    So, I guess it's only fair that a straight man or woman serving on the Court bench should recuse themselves from 'judgement' IF they've been out there/AGAINST marriage equality, right? Or a black man or woman recuse themselves on any 'white' issues or a woman recuse herself if involved with any rape case. The Courts sure could get very tangled up in the 'what if's' … might as well bring on the robots for sterile & robotic rationale and decision-making in the Courts. Ugh.

  • 13. Jamie  |  January 31, 2012 at 2:40 pm

    Is there a rule requiring judges to recuse themselves if they advocated for a particular position? If I, as a white male judge in 1900, advocated against slavery, would I have had to recuse myself from any civil rights cases?

  • 14. Gregory in SLC  |  January 31, 2012 at 2:53 pm

    O.T. Brian Brown goes after Starbucks. ::rolls eyes and snorts::
    http://www.hrc.org/blog/entry/nom-goes-after-star

    @"Americans should be able to drink a peaceful cup of coffee without worrying that a portion of the company's profits is going to be used to push gay marriage without a vote from the people,"

  • 15. chris hogan  |  January 31, 2012 at 3:07 pm

    My reply to Brian Brown's comment is:

    I agree, Brian. STOP WORRYING and enjoy your coffee!

  • 16. MJFargo  |  January 31, 2012 at 3:10 pm

    That Brian is SUCH a worrier. (Although, bet he swallows that Chick-fil-a like a pro.)

  • 17. thark  |  January 31, 2012 at 3:25 pm

    This is a transparent ploy to reintroduce the same red-herring quashed in the 9th circuit over Judge Walker's alleged bias…that lost.

  • 18. DaveP  |  January 31, 2012 at 3:48 pm

    ew. I did not need that mental image.

  • 19. Jon  |  January 31, 2012 at 5:42 pm

    And yet Clarence Thomas has no intention of recusing himself from an almost certain case on health care reform. Despite his and his wife's clear record of political action on it.

  • 20. Josh  |  January 31, 2012 at 7:52 pm

    Great reporting in general, but am I the only one who finds the descriptor "openly gay" to be at best dated, at worst offensive? To me it always sounds like it implies that being gay is something that should be hidden. Now, in 2012, it should be assumed that a gay person making headlines is out unless it is stated otherwise (i.e. "Closeted gay Marcus Bachmann still trying to turn other gays straight," rather than "Openly gay Dan Savage again glitter-bombed by trans activists" Why don't we move past the "openly" gay moniker and just say gay or lesbian without mentioning that the person is out? Just my two cents… Interested in hearing others' opinions…

  • 21. Martin Pal  |  February 1, 2012 at 10:34 am

    I agree with you, Josh.

    ***

    Christie says, “My perspective on that issue was to put it aside because he’s not going to rule on that.”

    Ah, the omniscient Christie. Does this mean that if he “thought” the judge might rule on that he would not put it aside? Numbnuts.

  • 22. Carpool Cookie  |  February 1, 2012 at 11:33 am

    "before we EVER see an atheist president"

    I wonder. In that, there are trillions of people who give no thought to religion at all, either to stay with a faith they were raised in, or to officially reject anything. What would happen to c non-church/temple/mosque-going candidate who said they had no affiliation, and frankly did not dwell on the issue either way? That's not being an atheist, exactly….it's just not being interested.

  • 23. Chrys  |  February 1, 2012 at 3:24 pm

    I actually totally agree with this decision. If, as stated, he has been lobbying for marriage equality, then, yes, he should recuse himself if it comes to the bench. And the answer to the person who asked if someone on the bench had been lobbying against marriage equality should recuse themselves is yes, they should.

    The key point here is lobbying on the issue. That establishes a clear conflict of interest.

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